Case Number: BD629524 Hearing Date: May 09, 2016 Dept: 59

DEPT: 59

DATE: 5/9/16

CALENDAR #: 15

MATTER: RFO TO SET ASIDE STIPULATION AND ORDER FROM 1/6/16 AND AMENDED RESPONSE

FILING DATE: 4/8/16

MOVING PARTY: Respondent, Oscar Santoscoy

OTHER PARTY: Petitioner, Martha Casillas

CASE NUMBER: BD629524

NOTICE: ok

TENTATIVE RULING

Grant by setting aside the stipulation and order, entered 1/6/16, and grant leave to file an amended response requesting nullity of domestic partnership.
The Court does not consider the late filed opposition.

REASONING:

The opposition was filed and served by mail on 5/2/16, which was 4 court days late to file and 4 court days plus at least 1 calendar day late to serve by mail–Code of Civil Procedure 1005).

California Rule of Court 3.1300(d) states: “If the court, in its discretion, refuses to consider a late filed paper, the minutes or order must so indicate.”
Note that Rule 3.1300(d) is not applicable to family law proceedings, except for discovery proceedings. (California Rule of Court 3.1100 and 3.1103(a).) However, said Rule is adoptable to this family law proceeding pursuant to California Rule of Court 5.2(g) since there is no applicable rule specifying how to proceed when a paper is filed late, and Rule 3.1300(d) is a suitable process or mode of proceeding that is consistent with the spirit of the Family Code and the Family Law California Rules of Court.

The mandatory language under Code of Civil Procedure 473(b) based on an attorney affidavit of fault is not applicable, since there is no entry of default, default judgment or dismissal. (See LAW below.)
The discretionary relief under Code of Civil Procedure 473(b) is available for relief since this motion was filed on 4/8/16, which was within 6 months of entry of the stipulation and order on 1/6/16.
Respondent has shown that he entered into the stipulation and order through a mistake in law, as Respondent did not know that Petitioner had no ground to file this action for dissolution of domestic partnership. (Code of Civil Procedure 473(b).)
Hogoboom & King state:

(1) [16:41] “Mistake” justifying §473(b) relief can be one of fact (facts understood to be other than they really are) or law (misunderstanding as to legal consequences of known facts). [Douglass v. Todd (1892) 96 C 655, 659, 31 P 623, 624; Hansen v. Hansen (1961) 190 CA2d 327, 331, 12 CR 44, 47]

An “honest mistake of law” is a valid ground for relief when the legal issue posed is “complex and debatable.” [State Farm Fire & Cas. Co. v. Pietak (2001) 90 CA4th 600, 611, 109 CR2d 256, 263–264—controlling factors re whether mistake of law is excusable are “the reasonableness of the misconception and the justifiability of the failure to determine the correct law”; see Marriage of Jacobs (1982) 128 CA3d 273, 286–287, 180 CR 234, 241–242 §473(b) relief from stipulated disso judgment for “mistake of law” where W, acting under H’s advice, did not understand legal effect of purported “gifts” to children]

On the other hand, mere ignorance of the law coupled with negligence in ascertaining it is not a mistake cognizable by §473(b) relief. [Generale Bank Nederland, N.V. v. Eyes of the Beholder Ltd. (1998) 61 CA4th 1384, 1402, 72 CR2d 188, 199–200; see also Burnete v. La Casa Dana Apts. (2007) 148 CA4th 1262, 1267, 56 CR3d 437, 441—mistake in judgment in choosing to proceed in pro per is not “mistake of law” cognizable by §473(b) relief]

(Hogoboom & King, California Practice Guide, Family Law, Section 16:41.)
On 10/26/15, Petitioner filed a petition for dissolution of domestic partnership. However, a domestic partnership between Petitioner and Respondent is invalid, as the parties do not meet the requirements for domestic partnership under Family Code 297(b). Specifically, the parties are not members of the same sex, or in the alternative, neither party could have been 62 at the time a domestic partnership was filed. (Family Code 297(b)(4).) According to their Income and Expense Declarations, filed in 2016, Petitioner is 51 and Respondent is 56.
Since a domestic partnership between the parties is invalid, Respondent could have requested nullity in his response. Instead, on 12/2/15, he filed a response that does not request dissolution, legal separation or nullity. In addition, he entered into the 1/6/16 stipulation and order under the mistaken belief that this action is valid, as pled by Petitioner. Respondent’s mistake of law is reasonable, since the parties have a domestic partnership (a copy is attached to the opposition), domestic partnership law is relatively new and now moot except for those still in existence, and I doubt that there is a case applying the law of nullity to a domestic partnership based on failure to meet the gender requirements.
In fact, Respondent apparently still doesn’t understand the law, as his proposed amended petition does not request nullity of domestic partnership. Rather, Respondent has checked the boxes to request a dissolution of domestic partnership and the, in item 11.c., he requested that the court dismiss or quash the action due to the parties not meeting the domestic partnership requirements under Code of Civil Procedure 297.4(a).
The court may not properly quash the proceeding and dismiss the action under California Rule of Court 5.121, since none of the grounds thereunder apply. Note that the ground of lack of legal capacity to sue does not apply, since legal capacity to sue refers to incapacity due to age or mental incapacity. (See Hogoboom & King, Cal. Practice Guide: Family Law, Section 4:107.) The absence of domestic partnership status or marital status does not affect Petitioner’s capacity to file the lawsuit or Respondent’s capacity to respond to the petition and request relief. Rather, the absence of domestic partnership status or marital status is an affirmative defense to a request for dissolution of domestic partnership or marriage. If Respondent files an amended response requesting nullity, he will place at issue the question of whether there is a valid domestic partnership. (Family Code 299(d).)
Accordingly, the Court (1) Sets aside the stipulation and order, entered 1/6/16 (Code of Civil Procedure 473(b)) and (2) Permits Respondent to file an amended response requesting nullity of domestic partnership in furtherance of justice (Code of Civil Procedure 473(a)).

LAW: Code of Civil Procedure 473(b) states:

(b) The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken. . . . Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect. The court shall, whenever relief is granted based on an attorney’s affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties. However, this section shall not lengthen the time within which an action shall be brought to trial pursuant to Section 583.310.

(Code of Civil Procedure 473(b) (emphasis added).)